On December 2, 2011, a private individual filed a lawsuit in the Middle District of Alabama, under 42 U.S.C. § 1983 and state law, against the City of Montgomery Police Department, the Chief of Police, the Montgomery County Sheriff's Department, and the Alabama Department of Public Safety. Represented by Equal Justice Under Law and local private counsel, the plaintiff alleged that the application of Alabama's sex offender registration law violated his Fourteenth Amendment right to due process of law and denied him equal protection; subjected him to ex post facto laws, in violation of Article I Section 10; subjected him to illegal search and false imprisonment, in violation of the Fourth and Fourteenth Amendments; subjected him to false imprisonment and false arrest, in violation of Alabama law; and tortiously intentionally inflicted emotional distress on him.
The Alabama Sex Offender Registration and Community Notification Act ("ASORCNA") applies to adult offenders convicted of one of thirty-one offenses defined as a sex offense under Alabama law, as well as those convicted in another jurisdiction of a crime that, "if it had been committed in [Alabama] under the current provisions of law, would constitute" one of the enumerated offenses. The entire scheme is retroactive, capturing any enumerated or similar offense regardless of when it was committed. ASORCNA restricts where a registrant may live and work, requires the distribution of community-notification flyers to those living near a registrant's residence, and provides for a "public registry website maintained by the Department of Public Safety." The website is required to include specific information regarding each registrant. Registrants must "appear in person to verify all required registration information" quarterly; homeless registrants who reside in municipalities ("in-town registrants"), such as the plaintiff in this case, must also register weekly - and in person - with both the local police and county sheriff. Additionally, ASORCNA requires registrants who intend to be away from their county of residence for three or more consecutive days to "report such information in person immediately prior to leaving" and to complete a travel permit form providing "the dates of travel and temporary lodging information." When a registrant obtains a permit, the registrant's local sheriff must "immediately notify local law enforcement" in the registrant's destination. Importantly, in-town registrants must obtain travel permits from both the local police and county sheriff, despite the fact that the forms for obtaining travel permits are virtually identical for both jurisdictions. ASORCNA's provisions apply for life and without regard to the nature of the offense, the age of the victim, or the passage of time since the underlying sex offense.
On January 17, 2012, plaintiff voluntarily dismissed all claims against the City of Montgomery Police Department, the Montgomery County Sheriff's Department and various named individuals. On March 16, 2012, plaintiff dismissed all claims against the Alabama Department of Public Safety.
On March 29, 2012, the District Court (Chief Judge William Keith Watkins) granted defendants' motion to dismiss with respect to all but Claim IV, which alleges that the retroactive application of Alabama's sex offender registration law violates his rights under the Ex Post Facto Clause. That claim was heard at trial by Chief Judge William Keith Watkins in March and April of 2014. At trial, the plaintiff argued that the Alabama Sex Offender Registration and Community Notification Act ("ASORCNA") retroactively applies a set of restrictions that is "so punitive in its cumulative effects that it violates the ex post facto clause of the United States Constitution." The plaintiff alleged that ASORCNA caused him to be homeless by banishing him from his mom's home, his brother's home, his wife's home, and over 80% of the housing stock in Montgomery. He further alleged that ASORCNA contributes to, if not directly causes, the homelessness of dozens of other registrants across the state, and that it contributes to, if not directly causes, a 50% unemployment rate (over eight times the statewide average) amongst registrants. He described the ways in which ASORCNA imposes direct barriers on intra- and interstate travel, publicly brands all registrants, and creates crushingly burdensome reporting obligations, and argued that, under the United States Constitution, such extreme punishments cannot be applied retroactively.
On February 5, 2015, the District Court issued an order declaring that, with respect to sex offenders convicted before the passage of ASORCNA in 2011, ASORCNA is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in-town homeless registrants to register on a weekly basis with two separate law-enforcement jurisdictions and (2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions. The court explained that the issue in the case centered on the question whether ASORCNA may fairly be characterized as criminal, imposing a retroactive punishment, or is more properly categorized as civil and non-punitive. Although he concluded that the plaintiff did not show by the clearest proof that ASORCNA's scheme as a whole
is so punitive either in purpose or effect as to negate the Legislature's stated non-punitive intent, Judge Watkins reasoned that the two dual-jurisdiction requirements "are so punitive in their effect as to negate the Alabama Legislature's stated non-punitive intent by the clearest proof."
Judge Watkins declined to enjoin enforcement of the law, stating that he "is confident that state officials will abide by the judgment of this court declaring that [certain provisions of] ASORCNA [are] unconstitutional." Because the the Alabama Legislature expressed its intention that ASORCNA's provisions be severable and because the Act can be given effect absent the unconstitutional requirements, the remainder of ASORCNA remains "intact and in force."
Both parties have filed Notices of Appeal.Rebecca Eisenbrey - 03/16/2015